MANAGING CLIENT EXPECTATIONS Family ... - State Bar of Texas

MANAGING CLIENT EXPECTATIONSFamily Law Section ProgramSpeakers:Wendy S. BurgowerHouston, TexasBrian L. WebbDallas, TexasAuthors:Kay RedburnDallas, TexasNatalie L. WebbDallas, TexasG. Thomas VickWeatherford, TexasThursday, June 10, 20101:30 p.m. – 2:15 p.m.

OFFICES & POSITIONS:PAST CHAIR, FAMILY LAW SECTION, STATE BAR OF TEXASPAST CHAIR, TEXAS CHAPTER AMERICAN ACADEMY of MATRIMONIALLAWYERSPAST PRESIDENT, TEXAS ACADEMY of FAMILY LAW SPECIALISTSPAST CHAIR, FAMILY LAW SECTION, DALLAS BAR ASSOCIATIONBOARD OF GOVERNORS, AMERICAN ACADEMY of MATRIMONIAL LAWYERSBOARD OF GOVERNORS, USA CHAPTER INTERNATIONAL ACADEMY ofMATRIMONIAL LAWYERSPRESIDENT, AMERICAN ACADEMY of MATRIMONIAL LAWYERSFOUNDATIONSECTION REPRESENTATIVE TO STATE BAR OF TEXAS BOARD OFDIRECTORSSECRETARY, TEXAS FAMILY LAW FOUNDATIONCO-CHAIR, PATTERN JURY CHARGE COMMITTEE, FAMILY LAW, STATE BAROF TEXASPAST CHAIR, FAMILY LAW COMMITTEE, INTERNATIONAL SECTION,AMERICAN BAR ASSOCIATIONMEMBER, EXAM COMMISSION, AMERICAN ACADEMY of MATRIMONIALLAWYERSPAST MEMBER, CONTINUING LEGAL EDUCATION COMMITTEE, STATE BARof TEXASPAST MEMBER, FAMILY LAW EXAM COMMITTEE, TEXAS BOARD OF LEGALSPECIALIZATIONPAST MEMBER, FORMBOOK COMMITTEE, TEXAS FAMILY PRACTICEMANUALSERVED AS SPECIAL PROSECUTOR, STATE BAR of TEXAS COMMISSIONFOR LAWYER DISCIPLINEPAST MEMBER, FEE DISPUTE COMMITTEE, DALLAS BAR ASSOCIATION

COURSE DIRECTOR:ADVANCED FAMILY LAW COURSE, STATE BAR of TEXAS (won national awardfor excellence)MARRIAGE DISSOLUTION COURSE, STATE BAR of TEXASTRIAL INSTITUTE, TEXAS ACADEMY of FAMILY LAW SPECIALISTSNEW FRONTIERS IN FAMILY LAW, STATE BAR of TEXASAMERICAN ACADEMY of MATRIMONIAL LAWYERS WINTER MEETINGAMERICAN ACADEMY of MATRIMONIAL LAWYERS SPRING MEETINGADR TRAINING:CERTIFIED FAMILY LAW MEDIATORCERTIFIED FAMILY LAW ARBITRATOR (AAML)COLLABORATIVE LAW TRAININGMEMBERSHIPS:AMERICAN COLLEGE of FAMILY TRIAL LAWYERSAMERICAN ACADEMY of MATRIMONIAL LAWYERSAMERICAN ACADEMY of MATRIMONIAL LAWYERS FOUNDATIONINTERNATIONAL ACADEMY of MATRIMONIAL LAWYERSTEXAS ACADEMY of FAMILY LAW SPECIALISTSAMERICAN BAR ASSOCIATION (FAMILY LAW SECTION & INTERNATIONALLAW SECTION)STATE BAR of TEXASTEXAS BAR FOUNDATIONDALLAS BAR ASSOCIATION (FAMILY LAW SECTION)DALLAS BAR FOUNDATIONTARRANT COUNTY FAMILY LAW BAR ASSOCIATIONTEXAS CENTER FOR LEGAL ETHICS & PROFESSIONALISMTEXAS FAMILY LAW FOUNDATION

INCLUDING THE VISITING JUDICIARY: INAPPROPRIATE BEHAVIOR” 1999;“DEFENDING AGAINST EXOTIC PROPERTY DIVISION THEORIES” 1999;“CHARACTERIZATION AND TRACING” 2000; “RELOCATION: SHOULD I STAY,OR CAN I GO?” 2000; “ORGANIZING THE TRIAL NOTEBOOK” 2000, 2001;“TEMPORARY ORDERS: HOW TO LOOK PREPARED EVEN IF YOU MET YOURCLIENT YESTERDAY”, 2001; “GRANDPARENTS, WHERE THEY STAND NOW:TROXEL, AN ANALYSIS OF THE U.S. SUPREME COURT RULING” 2001; “ALLTHOSE WITH STANDING, STEP FORWARD....NOT SO FAST GRANDMA!POST-TROXEL THIRD PARTY STANDING TO BRING SAPCR’S, ANDREPRESENTING EXTENDED FAMILY AND NON-FAMILY MEMBERS” 2001;“NEW BOUNDARIES FOR GRANDPARENTS VISITATION” 2001; “DEALINGWITH ABUSIVE LAWYERS AND TACTICS” 2002; “JURISDICTION, VENUE,TRANSFER AND STANDING” 2003; “INTERNATIONAL ISSUES AND THEHAGUE CONVENTION” 2005;“DEALING WITH DIFFICULT CLIENTS IN ADIVORCE” 2006; “TRYING THE CUSTODY CASE” 2007; “CHARACTERIZATIONAND TRACING” 2007 “LEGISLATIVE UPDATE” 2008.Speaker: Marriage Dissolution Course, State Bar of Texas, 1985, 1986, 1987,1990, 1991, 1992, 1993, 1994, 1996, 1997, 1998, 1999, 2000, 2001, 2003, 2005,2006, 2007; Advanced Family Law Course, State Bar of Texas, 1987, 1988,1989, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001,2002, 2003, 2004, 2005, 2007, 2008, 2009; Second World Congress on FamilyLaw and the Rights of Children and Youth, 1997; New Frontiers in MaritalProperty Law, 1996, 1997, 1998, 1999, 2008; North American Symposium onInternational Child Abduction, 1993; SMU Texas Family Litigation Course,1987; Annual Conference of Texas Association of Domestic Relations Offices,1987; Panel on Joint Custody, 1983; Dallas Bar Family Law Section; DallasAssociation of Young Lawyers, “A Day With the Experts,” 1986, 1987; FamilyLaw in Texas, Legal Education Institute, 1988, 1989, 1990; Midyear Meeting,American Academy of Matrimonial Lawyers, 1988, 1990, 1993, 2001, 2008; TrialInstitute, Texas Academy of Family Law Specialists, 1988, 1990, 1991, 1992,1993, 1994, 1995; Advanced Family Law Drafting Course, 1992; Tarrant CountyFamily Law Bar Association, 1988, 1995, 1998, 2001; Family Law for theExperienced Non-Specialist, State Bar of Texas, 1989; Regional JudicialConference, 1990; South Texas College of Law, Family Law for the GeneralPractitioner and Legal Assistant, 1992; Pro Bono Training Seminar,International Child Abduction Treaty, 1992; Annual Meeting Family LawSection, State Bar of Texas, 1992; Dallas Chapter of the Texas Society ofCertified Public Accountants Annual Meeting, 1993, 1994, 1995; Family LawPractice Institute, University of Houston Law Center, 1994, 1995, 1996, 1997,1999, 2000; Texas Family Law for the Paralegal, 1995, 1997, 1999; NevadaFamily Law Seminar, 2007.

TOP TEN WAYS TO SHOW THE CLIENT YOU CAREAND AVOID A GRIEVANCEPresented by:BRIAN L. WEBB, DallasThe Webb Family Law FirmWritten by:KAY REDBURN, DallasNATALIE L. WEBB, DallasThe Webb Family Law FirmState Bar of Texas33 RD ANNUAL MARRIAGEDISSOLUTION INSTITUTEMay 6-7, 2010San AntonioCHAPTER 7.3

KAY REDBURNThe Webb Family Law Firm325 N. St. Paul, Suite 4450Dallas, Texas 75201(214) 871-2730(214) 871-9339 FAXCertifications/ Board Certified Paralegal - Family Law - Texas Board of Legal Specialization, 2003Awards:Paralegal of the Year, 2006, Dallas Area Paralegal AssociationPresident’s Award, Texas Academy of Family Law Specialists, 2008Volunteer of the Year, Mesquite Police Department, 2008Employment:1996 - present Sr. Paralegal to Brian L. Webb, The Webb Family Law Firm, P.C.1995-1996 Owner, Per Diem Legal Resource, Free lance legal assistant/paralegal services to attorneysin the area of family law1992- 1995 Legal Assistant/paralegal to Brian L. Webb; McCurley, Webb, Kinser, McCurley &Nelson, L.L.P.1990-1992 Legal Assistant/paralegal to Charles H. Robertson, Laurence DePlaza; Robertson &Holmes, Dallas, Texas1985-1990 Legal Assistant/paralegal to Thomas C. Railsback, Dallas, Texas1983-1985 Legal Assistant to Leota H. Alexander, Dallas, TexasEducation:University of Texas at Austin, 1973-1975, major: PsychologyEl Centro Community College, 12 hrs, Paralegal Studies Assoc. Degree ProgramMesquite Citizen Police Academy, 21 st class, 2005Offices/Committees: Ethics and Professional Responsibility Coordinator, National Federation of ParalegalAssociations, 2005-2007;Founding Member, Paralegal Advisory Commission, Family Law, Texas Board of LegalSpecialization, 1993- 2000; Member 2005-2007; chair 2007 -presentMember, State Bar of Texas Standing Committee on Paralegals, 1995-present;Paralegal Liaison/Parliamentarian, Texas Academy of Family Law Specialists, 2004-present;Paralegal Committee, Family Law Section, State Bar of Texas, 1994-present;Chair, Professional Ethics Committee, Legal Assistants Division, State Bar ofTexas, 1994-1996;Paralegal Advisory Committee, El Centro College, 1993-1996, Chair 1996-present;Chair, Ethics Committee, Dallas Area Paralegal Association, 2009 - present;Legal Assistants' Liaison, Family Law Section, Dallas Bar Association, 1994-1997;Member, Dallas OK Commission, 1997Local Subcommittee Chair, Professional Ethics Committee, Legal AssistantsDivision, State Bar of Texas, 1991-1994;Membership Vice-President, Dallas Association of Legal Assistants, 1991-1993;Assistant Chair, Family Law Section, Dallas Association of Legal Assistants,1993;Assistant Newsletter Editor, Dallas Association of Legal Assistants, 1990-1992Mesquite Citizen Police Academy Alumni Association, Vice-President, 2007-2011Memberships:Paralegal Division, State Bar of Texas

Authorand Speaker:Texas Academy of Family Law SpecialistsFamily Law Section, State Bar of TexasFamily Law Section, Dallas Bar AssociationTexas Family Law FoundationCollege of the State Bar of Texas, Legal Assistants Division - Charter MemberDallas Area Paralegal AssociationMesquite Citizen Police Academy Alumni Association“The Paralegal’s Role in the Family Law Jury Trial”, with panel: Dr. Jan Delipsey, JohnT. Eck, Hon. Mary Ellen Hicks, Janet McCullar Vavra, Mike McCurley, and Glenn A.Perry, 35 th Annual Advanced Family Law Course, August 2009“You and Your Shadow Paralegal” with Brian L. Webb, Jim Loveless, Pam Farris,Advanced Family Law Drafting Course, December 2008“The Team Approach in a Family Law Practice” with Brian L. Webb, 30 th AnnualMarriage Dissolution Bootcamp, May, 2007“Protecting your Attorney/Professionalism from the Paralegal Standpoint” 32 nd AnnualAdvanced Family Law Boot Camp, August 2006Co-Course Director with Heather King, “Practical Aspects of Enhancing your LegalPractice” 29 th Annual Marriage Dissolution Institute Boot Camp, April 2006Co-Course Director with Brian L. Webb, “The Attorney and Legal Assistant Team: YouCan’t Do It Alone!” 28 th Annual Marriage Dissolution Institute Boot Camp, April 2005“Pathway to Your Future - Family Law”, Dallas Area Paralegal Association Career Day,2005“Ethics and the Paralegal”, Legal Assisting in Texas, November, 2004“Ethics for the Paralegal” , Paralegal Career Symposium, Charting your Course, DallasArea Paralegal Association, Fort Worth Paralegal Association, State Bar of Texas LegalAssistants Division, September 11, 2004“Use and Abuse of Legal Assistants in a Family Law Practice” , with Charles Hodges,Heather King, Julie Pruett Crawford and Melissa Johnston, 28 th Annual Advanced FamilyLaw Course, August, 2002“The Utilization of Legal Assistants in a Law Office and Legal Assistant Ethics”, CollinCounty Legal Association, April, 2002“Custody Issues and Grandparent Access”, with Miriam L. Ackels, Legal AssistantUniversity, September, 2001“Effective Use of Legal Assistants in a Family Law Practice”, with Brian L. Webb, GaryNickelson and Coye Conner, Jr., 27 th Annual Advanced Family Law Course, August, 2001“Taking the Case to Trial”, with Brian L. Webb, Texas Family Law Practice forParalegals, March, 2001“Organizing the Trial Notebook”, with Brian L. Webb, James Loveless, Kimberly Naylorand Sherri Evans, The Ultimate Trial Notebook: Family Law, December, 2000“Economics of Running a Law Practice”, with James Loveless, Dennis Brewer, DouglasHarrison, Curtis Loveless and Roy Moore, 25 th Annual Advanced Family Law Course,August, 1999“Handling Custody Disputes”, with Brian L. Webb, Texas Family Law Practice for

Paralegals, April, 1999“Effective Utilization of Legal Assistant and Staff”, with Brian L. Webb, Coye Conner, Jr.,and Barbara Calcote; 24 th Annual Advanced Family Law Course, August, 1998“Utilization of the Legal Assistant”, with Brian L. Webb, Tarrant County Family Law BarAssociation Meeting, June 1998“Ethics in Your Practice”, Advanced Civil Trial Seminar, Legal Assistants Division, StateBar of Texas, April 1998“Basic Malpractice Prevention”, Nuts and Bolts General Practice Skills Course, LegalAssistants Division, State Bar of Texas and Dallas Association of Young Lawyers,October 1996“Practical(ly) Legal Tips for Making Money with Your Legal Assistant”, Dallas BarAssociation Family Law Section Meeting (with Brian L. Webb), September 1996“Effective Use of Legal Assistants - How to Make Time and Money”, Advanced FamilyLaw Course, Dallas, Texas (co-authored with Barbara Calcote, Brian L. Webb and CoyeConner, Jr.) August 1995“Scruples”, quarterly column on ethics in Texas Paralegal Journal, (1995-1996)“Texas Family Law Practice for Paralegals”, Clearwater Information Systems, Inc., Dallas,1995 - Ethics - What is it and Why Should You Care? and How to Recognize and Deal withthe Battered Wife (article by Christine Albano)“Texas Family Law Practice for Paralegals”, Clearwater Information Systems, Inc.,Arlington, 1994 - Overview of the Texas Disciplinary Rules of Professional Conduct(article written with Mike McCurley)“The Trial Notebook”, co-authored with Mike McCurley, Family Law Handbook for theParalegal, Professional Education Systems, Inc., Dallas/Houston, 1992“Child Support Cases - How to Turn Lead into Gold”, co-authored with Charles H.Robertson, Family Law - The Team Approach for the Legal Assistant and the Lawyer,State Bar of Texas, Austin, Texas, 1990; and Family Law Handbook for the Paralegal,Professional Education Systems, Inc., Dallas/Houston, 1992“Communication - the Key to Gaining and Maintaining the Confidence of the Client andthe Opposition”, co-authored with Harry Tindall, Scott Cook, Luanne Riley-Thomas andN. Roberts, Family Law for Legal Assistants and Attorneys, State Bar of Texas, CorpusChristi, Texas, 1987

NATALIE L. WEBB!"#$%#&&$'()*+,$-(.$'*/)0$1232456$72$892$1(:+$89/##90$8:*9#$;;60$!#?(>$@65$5T/+*DU9CD$](++$(DP$-##$1(/\$S:D*C/$3CD>#/R(9C/,AUTHOR AND SPEAKERLegislative Update: Family Law Section Perspective0$3CIT:9"C/$.*9"$^2$7*JC+#$_C,+#>0$TPR(DJ#P'()*+,$-(.$3C:/>#0$8(D$TD9CD*C0$!#?(>0$T:U:>9$AAIA;0$50$T:>9*D0$!`$S(D:(/,$5KI4#0$=(++(>0$!#?(>0$T:U:>9$4$I$Z0$5

Top Ten Ways to Show the Client You Care and Avoid a GrievanceTABLE OF CONTENTSTOP TEN WAYS TO SHOW THE CLIENT YOU CARE AND AVOID A GRIEVANCE ........................................ 1RULE 1.03 COMMUNICATION .................................................................................................................................. 31.04 FEES (EFFECTIVE MARCH 1, 2005) .................................................................................................................. 4AFFIDAVIT.................................................................................................................................................................... 5i

Top Ten Ways to Show the Client You Care and Avoid a GrievanceTOP TEN WAYS TO SHOW THECLIENT YOU CARE AND AVOID AGRIEVANCE10. Don’t lie to them about anything. Honesty maybe painful, but it IS the best policy.9. Make sure client’s expectations are realistic.Don’t promise what you can’t deliver. And don’tsuccumb to their unrealistic expectations.8. Don’t get emotionally involved in their case.Maintain your professional detachment (which iswhy it’s called “professional”).7. Give them something for free every once in awhile. A “no charge” phone call for example cango a long way toward keeping clients happy. Andmake sure you know they know you’re doing it.A big “NO CHARGE” on their bill is alwayswelcome by clients.• “I don’t care how much it costs....”• “I didn’t have any confidence in my fourprior attorneys...”• “The trial starts next week. You can beready, right?”• “I just know he’s hiding money somewhere”• “I want my kids half the time so I don’t haveto pay any child support”• “What countries are not signatories to theHague Convention on International ChildAbduction?”6. Be up front (and do it in writing) about fees andcosts.5. A busy client is a happy client. Give them workto do. Remind them that whatever they can do tohelp saves them money (and you time).4. Copy the client in everything that comes in orgoes out on their case. Everything.3. Return client calls.2. Return client calls.1. Most importantly: RETURN CLIENT CALLS.The “failure to keep the client informed”, Rule103(a) is the most frequent violation by attorneys ofthe Texas Disciplinary Rules of Professional Conduct.And if you show the client you care but still can’tavoid a grievance:1. If it didn’t happen in writing, IT DIDN’THAPPEN. Document everything. Keep copies.2. If they won’t follow your advice, get them to sign“I’m a Dumbass” Affidavit.3. Put reminders about client’s duty to supplementdiscovery in each monthly billing statement.4. Watch for red flags before taking a case.Examples:1

!"#$!%&$'()*$+"$,-".$+-%$/01%&+$2"3$/(4%$(&5$67"15$($841%7(&9%take protective steps) such as initiating the appointment of a guardian. The lav,ryer should !""#tosuch appointment or take othe.r protecth'e steps \:o..'hen it reasonably appears advisable to do soin order to serve the client's best interests. See Rule 1.05 (c)(4), dO) and (d)(2)(i) in regard tothe lav')1er's right to re\'eal to the court the facts reasonably necessary to secure the guardianshipor other protective order.Rule 1.03 COl1ullunication(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptlycomply with reasonable requests for information.(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client !"#make informed decisions regarding the representation.COtnlnent:$%# The client should have sufficient information to participate intelligently in decisionsconcerning the objectives of the representation and the means by which they are to be pursued)to the extent the client is \villing and able to do so. For example) a lawyer negotiating on behalfof a client should provide the client with facts relevant to the matter! inform the client ofcommunications from another party and take other reasonable steps to permit the client tomake a decision regarding a serious offer from another party. A lawyer who receives fromopposing counsel either an offer of settlement in a civil controversy or a proffered plea bargainin a criminal case should promptly inform the client of its substance unless prior discussionswith the client ha\'e left it clear that the proposal will be unacceptable. See Comment 2 to Rule1.02.2. Adequacy of comrnunication depends in part on the kind of advice or assistance involved.For exarnple! in negotiations ",.'here there is tirne to explain a proposal the lawyer should reviewall irnportant provisions with the client before proceeding to an agreement. In litigation alawyer should explain the general strategy and prospects of success and ordinarily shouldconsult the client on tactics that might injure or coerce others. On the other hand! a lavlryerordinarily cannot be expected to describe trial or negotiation strategy in detail. Moreover! incertain situations practical exigency may require a lmvyer to act for a client without priorconsultation. The guiding principle is that the lawyet should reasonably fulfill clientexpectations for information consistent v,lith the duty to act in the clienes best interests) andthe client.s overall requirements as to the character of representation.3. ()rdinarily, the information to be provided is that appropriate for a client who is acomprehending and responsible adult. Howe\'cr, fully informing the client according to thisstandard may be impractical, as for eX

!"#$!%&$'()*$+"$,-".$+-%$/01%&+$2"3$/(4%$(&5$67"15$($841%7(&9%Where many routine matters are involved, a system oflimited or occasional reporting may bearranged with the client.Withholding Information4. In some circumstances, a 1

!"#$!%&$'()*$+"$,-".$+-%$/01%&+$2"3$/(4%$(&5$67"15$($841%7(&9%THE STATE OF TEXAS )COUNTY OF DALLAS )AFFIDAVITBEFORE ME, the undersigned authority, on this day personally appeared_________________ who, being by me duly sworn, upon oath stated:"I, _________________, am the Petitioner in Cause # _________________ in the ____ DistrictCourt in and for Dallas County, Texas. I have consulted with____________________________,a duly licensed attorney practicing at __________________________________________________.He has advised me regarding discovery and its relationship to any agreement that I may want toenter into as a settlement of this Divorce action. I understand and acknowledge that he has advisedme not to enter into any agreement and further, not to settle the divorce now pending in this causewithout following his advice. He has advised me that he does not feel that I am sufficiently awareof my husband's income or the value and extent of the community estate and has advised me thatI should go forward with discovery measures to fully determine the extent and value of thecommunity estate. He has advised me that he does not feel I am aware of any of my husband’sseparate property assets against which I or the community estate may have an equitable interest orreimbursement claim. He has further advised me that due to the lack of knowledge concerning thecomplete assets and liabilities, including tax liability, of the community estate or my husband’sseparate property estate in which I may have an interest, he cannot adequately advise me regardingthe terms set forth in any agreement. I hereby acknowledge and state that I have instructed myattorney, against his advice, not to obtain the appropriate information necessary to ascertain theextent and value of the community estate or my husband’s separate estate in which I may have anAFFIDAVIT - Page 1 of 5:

!"#$!%&$'()*$+"$,-".$+-%$/01%&+$2"3$/(4%$(&5$67"15$($841%7(&9%interest, including liabilities. My attorney has advised me that only through full discovery duringthe pendency of this litigation can these matters be determined with any accuracy. I have advisedhim that I do not want to contest this matter in any way and that, despite his advice to the contrary,it is my desire to enter into an agreement.He has advised me that depositions, requests for disclosure, requests for production, requestsfor admissions, subpoenas duces tecum, interrogatories, appraisals and other discovery measures areavailable through which we could determine the actual value and extent of the community estate andmy husband’s separate estate in which I may have an interest, including all liabilities as well asassets. He has further advised me that the Court, upon hearing all of the evidence regarding myhusband's income and the assets and liabilities of the community, might award me adisproportionately larger share of the community estate than would be awarded to my husband.Further, he has advised me that the Court, upon hearing all the evidence regarding the reduction ofboth secured and unsecured liabilities of the community and my husband’s separate property estatethrough contributions from the community and my separate estate, might award the community ormy separate estate a claim of equitable interest or reimbursement against the benefitted estate. Hehas further advised me that once I have settled this case and a Decree of Divorce has been enteredbased upon an agreement, I will not have an opportunity to avail myself of discovery measuresthereafter, nor will I be able to renegotiate the terms of the agreement or in any way alter the termsof the agreement. I understand that an agreement will be final and binding upon me and that neithermy attorney nor the Court will have any meaningful ability to revise or alter the agreement in anyway. I further understand that should I wish to seek a review by the Court of the agreement after aDecree of Divorce has been entered by the Court, the remedies available to me, if any, will beAFFIDAVIT - Page 2 of 5;

!"#$!%&$'()*$+"$,-".$+-%$/01%&+$2"3$/(4%$(&5$67"15$($841%7(&9%substantially less than those available to me while the divorce is still pending, and that the processof seeking such a review by the Court will be substantially more expensive and less likely to besuccessful than pursuing my rights to discovery during the pendency of the divorce. I furtherunderstand that by foregoing discovery at this time and going ahead with an agreement against myattorney’s advice I am almost certainly waiving the right to any review of the agreement by a courtand that I will be, because of my decision to forego discovery, bound by the agreement no matterwhat facts or evidence, including fraud, I may discover in the future. Having a full understandingof this and acknowledging this advice, it is nevertheless my desire to enter into an agreement.My attorney has advised me that he is requiring me to execute this affidavit as a conditionof his continued representation of me since I am entering into an agreement against his advice. Hehas specifically advised me that I am relieving him of any liability for the nature and terms of theagreement, as well as any consequences of an agreement, by executing this affidavit. He has advisedme that be believes that by going forward with an agreement without discovery and against hisadvice I am making a foolish mistake and taking an enormous risk. He has advised me that he isrequiring me to execute this affidavit specifically to make it unequivocally clear that he has advisedme against foregoing discovery and entering into an agreement and that I hereby relieve him of anyand all potential liability or responsibility whatsoever.In summary, it is the advice of my attorney that I do not enter into an agreement and that nosettlement of this matter be entered into until such time as full discovery measures have been utilizedin order to determine the full extent and character of the community or separate property at stakein this cause, including liabilities as well as assets and any claims for equitable interest orreimbursement. I understand that by entering into an agreement against my attorney’s advice, theAFFIDAVIT - Page 3 of 5

!"#$!%&$'()*$+"$,-".$+-%$/01%&+$2"3$/(4%$(&5$67"15$($841%7(&9%agreement will be final and binding upon me and that I will have no recourse thereafter to alter orchange the agreement or avoid liability created by the agreement. I acknowledge that this advicewas given to me by ________________ and it is my desire to enter into a settlement of all issuesbefore the Court without utilizing discovery measures. It is my desire not to contest this matter inany way. For this reason, I am executing this Affidavit to acknowledge that this settlement is beingentered into contrary to my attorney's advice and to relieve my attorney, ________________ fromany and all liability for the consequences of my decision.This Affidavit is executed of my own free will and I have not been coerced, threatened,bribed, or offered any inducement or promise to execute an Affidavit. Any settlement that I enterinto is made with full awareness of the possible detriment to me and with knowledge that I amalmost certainly depriving myself of certain rights and benefits which I may have obtained had Iheeded the advice of my attorney and used the discovery measures available to me to determine theexact nature, character and extent of the community or separate estates prior to settlement of thiscause of action."_____________________________________________________(name)SUBSCRIBED AND SWORN TO before me on the ____ day of ________, 20__, byAFFIDAVIT - Page 4 of 5=

!"#$!%&$'()*$+"$,-".$+-%$/01%&+$2"3$/(4%$(&5$67"15$($841%7(&9%_________________._____________________________________NOTARY PUBLICState of Texas________________________WITNESSAFFIDAVIT - Page 5 of 5>

MANAGING CLIENTS EXPECTATIONS AT TRIALG. THOMAS VICK, JR.Vick Carney & Smith, L.L.P.111 York AvenueWeatherford, Texas 76086(817) 596-5533tvick@vcslaw.comState Bar of TexasMARRIAGE DISSOLUTION BOOT CAMPMay 5, 2010San AntonioCHAPTER 5

G. Thomas Vick, Jr.Vick Carney & Smith, L.L.P.111 York AvenueWeatherford, Texas 76086(817) 596-5533tvick@vcslaw.comBoard Certified-Family Law, Texas Board of Legal SpecializationFellow--American Academy of Matrimonial LawyersFellow--International Academy of Matrimonial LawyersBar ActivitiesState Bar of TexasBoard of Directors 2005-2008Commissioner, Texas Access to Justice Commission 2006-2009Chair, Supreme Court Task Force to Expand Legal Services Delivery (2006-2007)Chair, Family Law Section (2004-2005)Member, Family Law Section Council (1991-2006)Chair, Family Law Section Council Pro Bono Committee (1997-1999)Member, Editorial Committee, Texas Family Law Practice Manual (1991-1997)Texas Academy of Family Law SpecialistsPresident (2004-2005)Board Member (1994-2006)(Former Editor, Family Law Forum)American Academy of Matrimonial Lawyers (National Officer: Treasurer 2006-Present, Secretary 2003,Parliamentarian 2002; Texas Chapter President 2000-2001)American Bar Association (1981-2008) (House of Delegates 1981)Texas Bar Foundation, Life FellowAmerican Academy of Matrimonial Lawyers Foundation, Life FellowTexas Family Law Foundation, Life FellowTarrant County Family Bar AssociationParker County Bar Association (Past President)EducationAustin College, Sherman, Texas, BA 1977South Texas College of Law, Houston, Texas, JD 1981Course Director2007 New Frontiers in Marital Property, Memphis, TN2002 Advanced Family Law Course, Dallas, TX2000 Marriage Dissolution Institute, Fort Worth, TXTexas Academy of Family Law Specialists 13 th Annual Trial Institute (1999), Las Vegas, NVAssistant Course Director, Texas Academy of Family Law Specialists 11 th and 12 th Annual Trial Institutes(1997, 1998), New Orleans, LAPublications & Lectures1995 to CurrentEffective Presentation of Evidence, Panel Discussion, 2009 Advanced Family Law Course, Dallas, TXManaging Client Expectations, 2009 Family Law Basic Training, Dallas, TXManaging Client Expectations, 2009 Am. Academy of Matrimonial Lawyers Mid-Year Meeting, Kauai, HISpoliation, 2008 Advanced Family Law Course, San Antonio, TXPossession Orders, 2007 Advanced Family Law Course, San Antonio, TX

Negotiation: You Can’t Try Them All, 2007 Marriage Dissolution Institute, El Paso, TXManaging Client Expectations; Trying the Property Case on a Shoestring; Top Ten Trial Tips, 2007 Nevada State BarFamily Law Course, Ely, NVInternational Child Issues and the Hague Convention, 2006 Advanced Family Law Course, San Antonio, TXWhen the Texas SPO Won’t Work,2006 Texas Advanced Paralegal Seminar, Addison, TXDirect and Cross Examination, 2005 Family Law Basic Training, Dallas, TXLegislative Update, 2005 Associate Judge=s Conference, Austin, TXTemporary Orders, 2005 Poverty Law Conference, Austin, TXReforming Your Client=s Expectations, 2004 Legal Assistant=s University, Fort Worth, TXLife of a Grievance, 2004 Advanced Family Law Course, San Antonio, TXManaging Client Expectations, 2004 Marriage Dissolution Institute, Fort Worth, TXDealing With the Client From Hell, 2003 Advanced Family Law Course, San Antonio, TXSetting and Getting Fees, 2003 Marriage Dissolution Institute, Houston, TXSpoliation, 2001 Advanced Family Law Course, San Antonio, TXClosing the File, 2001 Marriage Dissolution Institute, Corpus Christi, TXGetting the Most Out of Your Discovery, The Ultimate Trial Notebook: Family Law (2000), New Orleans, LATop Ten Things in a Family Law Practice, 2000 Advanced Family Law Course, San Antonio, TXBankruptcy In Divorce, 1999 Advanced Family Law Course, Dallas, TXBankruptcy Meets Family Law, Univ. of TX School of Law 2 nd Annual TX Marital Property Inst. (1998), Austin, TXWorking as an Expert in Family Law Cases, 1998 Divorce Conference (Dallas Chapter, TX Society of CPA=s)Divorce vs. Bankruptcy--When Worlds Collide, 1998 Farm, Ranch and Agri-business Bankruptcy Inst., Lubbock, TXJurisdiction, 1998 Advanced Family Law Course, San Antonio, TXParent-Child Third Party Practice, 1998 Marriage Dissolution Institute, Austin, TXRecent Federal Legislation, 1998 Am. Academy of Matrimonial Lawyers Mid-Year Meeting, San Juan, PRCreative Divisions of Property, 1997 Advanced Family Course, San Antonio, TXTrying a Property Case on a Shoestring, 1997 Marriage Dissolution Institute, Dallas, TXRecent Interesting Cases, 1997 College of Advanced Judicial Studies, Houston, TXModification of Rights and Powers of a Joint Managing Conservator, 1996 Adv. Fam. Law Course, San AntonioEnforcement Workshop, 1996 Marriage Dissolution Institute, Corpus Christi, TXDirect Examination in a Property Case, TX Academy of Fam. Law Specialists 9 th Trial Inst. (1995), New OrleansHonors/Activities2009 American Academy of Matrimonial Lawyers Fellow of the Year2009 Texas Academy of Family Law Specialists Judge Sam Emison Award, “For Significant Contributionsto the Practice of Family Law in the State of Texas”2008 Dan R. Price Award; State Bar of Texas Family Law Section Outstanding Family Lawyer2008 State Bar of Texas Presidential Citation for Service to the BarNamed in 2003, 2004, 2005, 2007, 2008, 2009 Texas Monthly as a ASuperLawyer@Named in The Best Lawyers in America 1993 to currentNamed 1993 Southwest High School (Fort Worth, Texas) Distinguished GraduateMayor, City of Weatherford, Texas 1982-1986Trustee, Weatherford Independent School District 1995-2001

Managing Clients Expectations at TrialTABLE OF CONTENTSI. ! INTRODUCTION ................................................................................................................................................... 1!II. !ROLE OF THE ATTORNEY ................................................................................................................................. 1!A. ! The Texas Disciplinary Rules of Professional Conduct .................................................................................. 1!B. !Texas Lawyers Creed ...................................................................................................................................... 1!III. !FEES ....................................................................................................................................................................... 3!A.! The Law Of Diminishing Appreciation ........................................................................................................... 3!B. !Using TDRPC to Set a Fee .............................................................................................................................. 3!C. !Forbidden Fees ................................................................................................................................................ 4!1. ! Unconscionable Fees ............................................................................................................................... 4!2. ! Fees in Family Law Matters .................................................................................................................... 5!D. !Getting Your Fees From The Court ................................................................................................................. 5!E. !Getting Out ...................................................................................................................................................... 6!IV. !TIME ....................................................................................................................................................................... 7!V. !OUTCOME ............................................................................................................................................................. 8!A.! Property ........................................................................................................................................................... 8!B. !Suits Affecting the Parent Child Relationship .............................................................................................. 8!VI.! CONCLUSION ....................................................................................................................................................... 8!APPENDICESSAMPLE PROPOSED DIVISION ....................................................................................................................... 11i

Managing Clients Expectations at TrialMANAGING CLIENTEXPECTATIONS AT TRIALI. INTRODUCTIONToday=s family law client is as sophisticated andwell informed as ever. He has access to moreinformation about the law, the lawyers, the judges andthe legal process than imaginable. Clients findinformation on the internet, from the media and asalways, from friends, relatives and neighbors. This isoccasionally a blessing, but most often a curse. Moreoften than not, my worst enemies in a case are thefriends and relatives of the client who want to dispenseadvice about what the client should be doing and how heshould be doing it. Dealing with these issues,managing the client’s expectations, is an important, ifnot vital part of every successful family law matter.Doing so properly will result in a client more pleasedwith the process and the outcome; and, will makemanaging the case and client better for both you andyour staff.II. ROLE OF THE ATTORNEYAt the outset of any engagement it is important tomake clear to the client what it is you will and will notbe doing and the fees you will be charging for yourservices. All of this should be addressed at the outsetof the case clearly and in writing. It is important thatthe client know what you are not: Dr. Phil, his mother,his buddy, his accountant, his buffer between his billcollectors and he, his daycare, or his appointmentssecretary. Too much television and too much instantaccess, has blurred the lines between the role of theattorney and these other Afriends.@ Your life will besimpler and your likelihood of appearance before agrievance committee slimmer if you and your client arecognizant and in accord about your role.A. The Texas Disciplinary Rules of ProfessionalConductThe Texas Disciplinary Rules of ProfessionalConduct outline your responsibility to your client. Thefour most relevant to this discussion are as follows:1. A lawyer is a representative of clients, anofficer of the legal system and a publiccitizen having special responsibility forthe quality of justice. Lawyers, asguardians of the law, play a vital role inthe preservation of society. Thefulfillment of this role requires anunderstanding by lawyers of theirrelationship with and function in ourlegal system. A consequent obligation oflawyers is to maintain the higheststandards of ethical conduct.12. As a representative of clients, a lawyerperforms various functions. As advisor, alawyer provides a client with aninformed understanding of the client'slegal rights and obligations and explainstheir practical implications. As advocate,a lawyer zealously asserts the client'sposition under the rules of the adversarysystem. As negotiator, a lawyer seeks aresult advantageous to the client butconsistent with requirements of honestdealing with others. As intermediarybetween clients, a lawyer seeks toreconcile their divergent interests as anadvisor and, to a limited extent, as aspokesperson for each client. A lawyeracts as evaluator by examining a client'saffairs and reporting about them to theclient or to others.3. In all professional functions, a lawyershould zealously pursue clients' interestswithin the bounds of the law. In doing so,a lawyer should be competent, promptand diligent. A lawyer should maintaincommunication with a client concerningthe representation. A lawyer should keepin confidence information relating torepresentation of a client except so far asdisclosure is required or permitted by theTexas Disciplinary Rules of ProfessionalConduct or other law.4. A lawyer's conduct should conform to therequirements of the law, both inprofessional service to clients and in thelawyer's business and personal affairs. Alawyer should use the law's proceduresonly for legitimate purposes and not toharass or intimidate others. A lawyershould demonstrate respect for the legalsystem and for those who serve it,including judges, other lawyers andpublic officials. While it is a lawyer'sduty, when necessary, to challenge therectitude of official action, it is also alawyer's duty to uphold legal process.B. Texas Lawyers CreedIn every contract for employment, and there shouldbe one in every case, a copy of the Texas Lawyers Creedshould be attached. The Supreme Court has mandatedthat the client be made aware of the Creed and theattachment of the Creed to the contract is an easy way tocomply. More important however, is the informationcontained in the Creed with respect to your conduct of

Managing Clients Expectations at Trialthe case and your role vis a vis the Court and opposingCounsel. Through the media and common folklore,many clients believe it is our job and our duty to beargumentative and obstreperous. Many are under theimpression that to be successful, we need to bedisagreeable and difficult, if not rude, to opposingparties, witnesses and counsel. A reading of theALawyer to Lawyer@ portion of that Creed will not onlydissuade them of those false ideas, but will help themunderstand that we are bound not to engage in thatconduct. The client must be convinced at the outset thathis case can best be handled in a businesslike andAabove-the-board@ fashion. The ALawyer to Lawyer@ isset out below. The entire Creed can be found athttp://www.txethics.org/referencecreed.asp.A lawyer owes to opposing counsel, in the conductof legal transactions and the pursuit of litigation,courtesy, candor, cooperation, and scrupulousobservance of all agreements and mutualunderstandings. Ill feelings between clients shall notinfluence a lawyer's conduct, attitude, or demeanortoward opposing counsel. A lawyer shall not engage inunprofessional conduct in retaliation against otherunprofessional conduct.I will be courteous, civil, and prompt in oraland written communications.I will not quarrel over matters of form or style,but I will concentrate on matters of substance.I will identify for other counsel or parties allchanges I have made in documents submittedfor review.I will attempt to prepare documents whichcorrectly reflect the agreement of the parties. Iwill not include provisions which have notbeen agreed upon or omit provisions whichare necessary to reflect the agreement of theparties.I will notify opposing counsel, and, ifappropriate, the Court or other persons, assoon as practicable, when hearings,depositions, meetings, conferences orclosings are cancelled.I will agree to reasonable requests forextensions of time and for waiver ofprocedural formalities, provided legitimateobjectives of my client will not be adverselyaffected.I will not serve motions or pleadings in anymanner that unfairly limits another party's2opportunity to respond.I will attempt to resolve by agreement myobjections to matters contained in pleadingsand discovery requests and responses.I can disagree without being disagreeable. Irecognize that effective representation doesnot require antagonistic or obnoxiousbehavior. I will neither encourage norknowingly permit my client or anyone undermy control to do anything which would beunethical or improper if done by me.I will not, without good cause, attribute badmotives or unethical conduct to opposingcounsel nor bring the profession into disreputeby unfounded accusations of impropriety.I will avoid disparaging personal remarks oracrimony towards opposing counsel, partiesand witnesses. I will not be influenced by anyill feeling between clients. I will abstain fromany allusion to personal peculiarities oridiosyncrasies of opposing counsel.I will not take advantage, by causing anydefault or dismissal to be rendered, when Iknow the identity of an opposing counsel,without first inquiring about that counsel'sintention to proceed.I will promptly submit orders to the Court. Iwill deliver copies to opposing counsel beforeor contemporaneously with submission to thecourt. I will promptly approve the form oforders which accurately reflect the substanceof the rulings of the Court. I will not attemptto gain an unfair advantage by sending theCourt or its staff correspondence or copies ofcorrespondence.I will not arbitrarily schedule a deposition,Court appearance, or hearing until a goodfaith effort has been made to schedule it byagreement.I will readily stipulate to undisputed fact inorder to avoid needless costs or inconveniencefor any party.I will refrain from excessive and abusivediscovery.I will comply with all reasonable discoveryrequests. I will not resist discovery requestswhich are not objectionable. I will not make

Managing Clients Expectations at Trialobjections nor give instructions to a witnessfor the purpose of delaying or obstructing thediscovery process. I will encourage witnessesto respond to all deposition questions whichare reasonably understandable. I will neitherencourage nor permit my witness to quibbleabout words where their meaning isreasonably clear.I will not seek Court intervention to obtaindiscovery which is clearly improper and notdiscoverable.I will not seek sanctions or disqualificationunless it is necessary for protection of myclient's lawful objectives or is fully justifiedby the circumstances.III. FEESTogether with the need to uphold the standards ofthe profession is the need of most professionals tooperate the practice as a business. Most attorneys Iknow can do their best work when unencumbered byworries of overhead and client receivables. It is in boththe client’s and attorney=s best interest that a reasonablefee be set and paid.Likewise, it is in the best interest of the judicialsystem that reasonable fees be set and paid. Almost allof the spurious, vindictive and wasteful litigation I havewitnessed were in cases wherein one or both of thelitigants were not paying their own attorney fees, eitherbecause the lawyer was not charging them or because athird party was paying the fee. There is no incentive totake a reasonable position if there is no consequence totaking the unreasonable. This is even more true whenone side is paying and the other is not.It has been opined that the two best days of the caseare the first and last. To make the case better all of theway through, careful consideration needs to be given tosetting the initial fee. In many cases this may be thelast money you see for a long time. More and moreclients are borrowing funds to pay their initial retainersand have few resources to continue paying once the caseis in midstream.A. The Law Of Diminishing AppreciationOver the years I have observed a continuallyrepeating phenomenon that I have come to refer to asthe Law of Diminishing Appreciation. It goes like this:You work diligently, long after the initial retainer isgone, and you put on an excellent show at trial. On thelast day of trial or particularly on the day the favorableruling is handed down, you are God=s gift to the legalprofession; the client is effusive with praise: AWe couldnever have done this without you,@ AYou wereawesome,@ AWhatever this costs, you just let me know,3that was fantastic.@ In about thirty days when the billarrives the attitude is slightly adjusted: AHe was ok, butit sure wasn=t worth this much,@ AThat sure is a lot ofmoney for what we got,@ A I=m getting your moneytogether but that sure was expensive.@ After sixty daysthe attitude shifts markedly: AI=ll pay you when I can,but I have a lot of bills; it costs a lot of money to raisethose kids I got custody of and my ex isn=t paying thesupport on time. Why aren=t you doing something aboutthat?@ After ninety days, you will still not be paid andthe client believes that a) he did all of the work on thecase, b) you have way overcharged because he thoughtthat the initial $1500 was for the entire custody case(despite everything the retainer agreement says and allof the discussions about fee that were had as the casetranspired), and c) Anot only would I never send anyoneback to that lawyer, I=m thinking about filing agrievance over those excessive fees.@ The fact is that theclient has other demands on his cash and you are at thebottom of the priority list because your work is throughand he does not need you any longer. A good feeagreement and a realistic retainer can ensure that youare paid for your time and effort and can also bebeneficial in your relationship with your client.My experience is that in all but the rarest of cases,the initial fee is the single most determining factor inwhether you are going to be adequately compensatedfor your work. It is at the outset of the case that thematter is most important to the client. It is at the outsetwhen the client needs you the most and is mostmotivated to find a way to pay you. If you have assessedthe case and determined what you reasonably believethe case will require, and if the client cannot pay thefeeBDON=T TAKE THE CASE. Someone else will takethe case and someone else will get burned on the fee andhave a growth experience, but it does not have to beyou!B. Using TDRPC to Set a FeeHow then do you assess a case to determine aproper fee? First, listen to the client. No, really listen.Does the client have unrealistic expectations? Does hehave motivations and desires for the prosecution of thecase that you find distasteful or unethical? Can he bedissuaded from those ideas? Paragraph (b) of Rule 104of the Texas Disciplinary Rules of Professional Conductsets out factors to consider (all of which should be setout in your fee agreement). Those factors, in italics, anda discussion of those factors are as follows:(b) Factors that may be considered in determining thereasonableness of a fee include, but not to theexclusion of other relevant factors, the following:(1) the time and labor required, the novelty anddifficulty of the questions involved, and the

Managing Clients Expectations at Trialskill requisite to perform the legal serviceproperly; This is where you need to considerhow much time the case will take. Considerhow difficult opposing counsel has beenhistorically, how difficult will it be to getinformation from your client or the opposingparty, how difficult will it be to get a hearing,how much Ahand-holding@ will the clientrequire (and do you have the time andtolerance to do it), how many and howdifficult are the claims that will have to bemade to make the client whole, and whetheryou are attempting to make new law or toconvince a judge to do something shehistorically does not do.(2) the likelihood, if apparent to the client, thatthe acceptance of the particular employmentwill preclude other employment by thelawyer; We know that if you take the divorcecase for one spouse that you will not representthe other spouse; nor will you likely everrepresent his relatives, corporate entities orfriends. You will not represent the opposingparty in any modification years later. The onlyexception to this rule is if you do such a goodjob of civilly, professionally and surgicallydestroying the opposite party, you may get alot of referrals based on his talk about howgood you were.(3) the fee customarily charged in the locality forsimilar legal services; This should be aconsideration both in the hourly rate and theretainer charged. Think realistically aboutwhat your market will bear and who yourcompetition may be.(4) the amount involved and the results obtained;Consider here the amount of money in theestate: if you are charging big retainers andhourly rates, the best thing you can do in asmaller case is to refer it to a good youngerattorney who will appreciate the business.Further consider the impact that the case willhave on you and your staff if it is much largerthan those you normally handle. Can youreally service this new client and take care ofeverything else you have currently? Willyou need to add staff or engage other lawyersor accounting professionals to assist you?Do you have malpractice limits to cover theamounts at risk? Are you going to worry orobsess about the case because of its size ornotoriety? Understand what all of yourlimitations are and work within them. Don=tbe afraid to get help or to say no.4(5) the time limitations imposed by the client orby the circumstances; Having assessed thedifficulty of the case, can you get the job donein the time the client or Court will want itcompleted, knowing that the docket in somecourt move like wildfire, while others takeindeterminable months or years to get to trial.Always be candid with your client about allthings, but particularly this.(6) the nature and length of the professionalrelationship with the client; This usuallydictates the amount of the retainer you willrequire. If the client in the divorce has beenyour good regularly paying client for years,the need for a large retainer is diminished.Do not however underestimate the initialexpense of starting the case and setting up thefile. You need also consider that if you arestarting a divorce for a regular client, he mayexpect disproportionately more prompt andattentive service initially which will impactyour ability to service your other clientele.(7) the experience, reputation, and ability of thelawyer or lawyers performing the services;You need to be charging an hourly ratecommensurate with your expertise and youryears of experience. If you have been doingthis for a long time and have a good staff,there are things you can do better and moreefficiently that you did your first day out oflaw school, and your hourly rate should reflectthat. If you are working on your thirddivorce case ever, you will spend a lot of timeinventing the wheel and researching issues forwhich it would be unfair to charge your client.(8) whether the fee is fixed or contingent onresults obtained or uncertainty of collectionbefore the legal services have been rendered.A discussion of contingency fees is set outbelow. Uncertainty of collection in thefuture may be the biggest component of thisentire list. (See The Law of DiminishingAppreciation above.)C. Forbidden FeesThe comments to Rule 1.04 make it clear that infamily law matters there are two types of fees thatshould not be set: unconscionable and contingent.1. Unconscionable FeesA7. Two principal circumstances combine tomake it difficult to determine whether a

Managing Clients Expectations at Trialparticular fee is unconscionable withinthe disciplinary test provided byparagraph (a) of this Rule. The first is thesubjectivity of a number of the factorsrelied on to determine thereasonableness of fees under paragraph(b). Because those factors do not permitmore than an approximation of a rangeof fees that might be found reasonable inany given case, there is a correspondingdegree of uncertainty in determiningwhether a given fee is unconscionable.Secondly, fee arrangements normally aremade at the outset of representation, atime when many uncertainties andcontingencies exist, while claims ofunconscionability are made in hindsightwhen the contingencies have beenresolved. The "unconscionability"standard adopts that difference inperspective and requires that a lawyer begiven the benefit of any suchuncertainties for disciplinary purposesonly. Except in very unusual situations,therefore, the circumstances at the time afee arrangement is made should controlin determining a question ofunconscionability.8. Two factors in otherwise borderlinecases might indicate a fee may beunconscionable. The first isover-reaching by a lawyer, particularlyof a client who was unusually susceptibleto such overreaching. The second is afailure of the lawyer to give at the outseta clear and accurate explanation of howa fee was to be calculated. For example,a fee arrangement negotiated at arm'slength with an experienced businessclient would rarely be subject toquestion. On the other hand, a feearrangement with an uneducated orunsophisticated individual having noprior experience in such matters shouldbe more carefully scrutinized foroverreaching. While the fact that a clientwas at a marked disadvantage inbargaining with a lawyer over fees willnot make a fee unconscionable,application of the disciplinary test mayrequire some consideration of thepersonal circumstances of theindividuals involved.2. Fees in Family Law Matters9. Contingent and percentage fees in familylaw matters may tend to promote divorceand may be inconsistent with a lawyer'sobligation to encourage reconciliation.Such fee arrangements also may tend tocreate a conflict of interest betweenlawyer and client regarding theappraisal of assets obtained for client.See also Rule 1.08(h). In certain familylaw matters, such as child custody andadoption, no res is created to fund a fee.Because of the human relationshipsinvolved and the unique character of theproceedings, contingent feearrangements in domestic relationscases are rarely justified.@D. Getting Your Fees From The CourtIn some instances it will be necessary to get yourinitial or ongoing fees from the Court. In most casesyour client will want fees paid by the opposing party atthe conclusion of the litigation. In either case there are anumber of statutes that will assist the client in thisrecovery. In addition to case law, the Civil Practice andRemedies Code, and a few provisions of the Rules ofCivil Procedure, the following Family Code sectionsauthorize the Court to award attorney fees:3.303(c)5.104(c)Payment for an appointed attorney for aRespondent reported to be a prisoner ofwar or missing on public servicePayment for an appointed attorney for aRespondent reported to be a prisoner ofwar or missing on public service (Saleof Homestead)6.502 Temporary OrdersBinterim fees andexpenses6.708 Costs may be awarded against a partyin a divorce6.709 Attorney fees and expenses intemporary orders during appeal7.001 Just and right division8.208(c)Fees to an employee who has beendiscriminated against because of a writof withholding9.014 Fees in post decree proceedings forenforcement, clarification and divisionof property problems9.205 Fees for dividing previously undividedproperty41.002 Fees in parental liability cases(property damage by minor child)41.0025 Fees in parental liability cases(property damage by minor child at a5

Managing Clients Expectations at Trialhotel)42.006(a)(1) Civil liability for interference with apossessory interest in a child42.009 Fees for a frivolous suit--Civil liabilityfor interference with a possessoryinterest in a child81.005 Protective Orders105.001(a)(5) SAPCR Temporary OrdersBinterim105.006(h)fees and expensesFees and costs for false allegations ofsex abuse or neglect106.002 Fees and costs for any Title 5 suit(SAPCR=s)107.015 Ad Litem Fees109.001(a)(5)SAPCR Attorney fees and expenses intemporary orders during appeal152.312 Fees and costs in UCCJEA proceedings156.005 Fees and costs for frivolousmodification actions157.164 Fees to appointed attorneys forindigents in enforcement actions157.167 Fees when Court finds Respondent hasfailed to make child support payments157.323(c)(1) Foreclosure of child support liens158.206(b)(3) Fees from an employer who does notwithhold per a writ158.209(c) Fees to an employee who has beendiscriminated against because of a writof withholding159.305 UIFSA159.313(b),(c) Fees to a UIFSA Obligee who prevails160.636(c) Fees and costs in paternity162.308(e) Fees in adoptions when discriminationis found231.211 IV-D cases, no fees against an agency231.303(c) failure to comply with a IV-D subpoena261.108(b) Frivolous claims against personsreporting abuse or neglect261.110 Fees when employer retaliates vs.employee who makes a child abuseclaim264.108(g)Fees in foster care and placement caseswhen discrimination is foundThese provisions should be used in every instance toattempt to persuade the Court to award fees from theopposing party.E. Getting OutLike other forms of gambling, success in settingand getting attorney fees hinges on knowing when to getin and when to get out. If you demand a reasonable feefor your services and demand that it be paid, you willearn the respect of your client, the Court and your peers.If you do not, you will be the scorn of all three-Band youwill not have served your client, your profession,yourself or your family. It is not fair to your other6clients or your staff to continue to work for anungrateful client who will not pay. It producesunrealistic demands on them and on you because youare doing work for free when you need to be servicingthe clients who have paid and who rightfully expectyour attention. The added stress will make your staffunhappy and will create problems for both you and yourfamily.So, the final key in setting and getting fees isknowing when to withdraw. By billing regularly, yourclient will be aware of what services you and your staffare performing. He will know that someone is workingalmost daily on his case. He will also know that he isbeing charged for phone calls and emails. Mostimportantly, he will be aware of his financial status withyou. As soon as it becomes apparent that you will berequiring more money, have that frank discussion withyour client. None of my clients would expect to go totheir places of employment and work for months at atime and not know when or if they would be paid.Every one of them would find other work. Clientsunderstand this logic. If they cannot afford to pay you,they need to find other counsel. By having thisdiscussion early, it is possible to withdraw from the caseat a time when no one=s interest is compromised. Noone is being served properly when you are not beingpaid for your time.Section 9 of the Texas Disciplinary Rules ofProfessional Conduct outlines the rules for decliningand terminating the attorney-client relationship:Rule 1.15. Declining or TerminatingRepresentation(a) A lawyer shall decline to represent aclient or, where representation hascommenced, shall withdraw, except asstated in paragraph (c), from therepresentation of a client, if:(1) the representation will result inviolation of Rule 3.08, otherapplicable rules of professionalconduct or other law;(2) the lawyer's physical, mental orpsychological condition materiallyimpairs the lawyer's fitness torepresent the client; or(3) the lawyer is discharged, with orwithout good cause.(b) Except as required by paragraph (a), alawyer shall not withdraw from

Managing Clients Expectations at Trialrepresenting a client unless:(1) withdrawal can be accomplishedwithout material adverse effect onthe interests of the client;(2) the client persists in a course ofaction involving the lawyer'sservices that the lawyer reasonablybelieves may be criminal orfraudulent;(3) the client has used the lawyer'sservices to perpetrate a crime orfraud;(4) a client insists upon pursuing anobjective that the lawyer considersrepugnant or imprudent or withwhich the lawyer has fundamentaldisagreement;(5) the client fails substantially tofulfill an obligation to the lawyerregarding the lawyer's services,including an obligation to pay thelawyer's fee as agreed, and hasbeen given reasonable warningthat the lawyer will withdrawunless the obligation is fulfilled;(6) the representation will result in anunreasonable financial burden onthe lawyer or has been renderedunreasonably difficult by the client;or(7) other good cause for withdrawalexists.(c) When ordered to do so by a tribunal, alawyer shall continue representationnotwithstanding good cause forterminating the representation.(d) Upon termination of representation, alawyer shall take steps to the extentreasonably practicable to protect aclient's interests, such as givingreasonable notice to the client, allowingtime for employment of other counsel,surrendering papers and property towhich the client is entitled and refundingany advance payments of fee that has not7been earned. The lawyer may retainpapers relating to the client to the extentpermitted by other law only if suchretention will not prejudice the client inthe subject matter of the representation.@Following these rules and getting out early can save atremendous amount of heartache for everyone. Whilethere are exceptions to every rule, and while it is oftendifficult to sever the relationship with a divorce clientbecause of the unique bond generally built in thesecases, know that you have a business to run and otherclients to serve. While it may sound cynical, knowalso that few of these clients will have any particularaffinity to pay you once the case is concluded.For most of us, payment for our work is the life=sblood of our practice. It=s significance cannot beoverlooked. Without it we cannot continue to practicelaw at any level. With it we can be the greatprofessionals we aspire to be. You will be far better offwalking away from a case that cannot pay, than intaking one that meets a short term immediate cash needand causes long term problems. We are all afraid ofthat void that seems to loom on the horizon if we finishall of our workBit perpetuates procrastination in manyof us. But the real truth is that every time you do agood job finishing a case, a better one will come alongto take it=s place. I have never withdrawn from a caseand regretted it later, the converse is not true.IV. TIMEMany clients have an idea that a divorce is over insixty days. In spite of significant discussion of the Asixtyday rule@ many of my clients call in sixty days todetermine if or when the case will be over. If theAaverage case@ in your office or your jurisdiction takessix months or twelve months, clients need to hear thatfrom you from the beginning.There is a very orderly process that most divorcecases follow. In a nutshell it is:a) arriving at some resolution of how the folkswill operate during the pendency of the case(temporary orders);b) coming to an understanding of whatcomprises the community and separate estatesand what claims the parties have (discovery);c) making some attempt to settle the case(usually a failed negotiation followed by asuccessful mediation); and if necessary,d) a final trial followed by;e) a battle to get all of the closing documents(including the decree) signed.Clients need to understand that process. They need tofurther understand that you have no control of three

Managing Clients Expectations at Trialsignificant elements in the process: 1. the behavior ofthe opposing party (whom they have probably describedat the outset as difficult, if not crazy); 2. the behavior ofopposing counsel; and 3. the Court=s docket and theattendant delay involved in scheduling matters forhearing and trial. They need further to understand thatmany cases are delayed because the client attempts toshortcut the process-Busually thinking that instead ofanswering discovery or preparing inventories, that theopposing party can be talked into a settlement-Bonly tofind that when that Ashortcut@ failed weeks, if notmonths, had been lost in the process.V. OUTCOMEA. PropertyMost clients want to discuss the probable outcomeof the case from the very first moment they meet you.The problem is that you have almost no reliableinformation on which to opine about anything. Theobvious course of action in the initial interview is tospend more time listening and less time opining. Thereare some concepts that should be explained early andsome notions shot down from the start. If your Judgealways divides the community portion of the retirement50/50 and your prospective client thinks he should getall twenty years of that retirement because he was theone who got up and went to work every day while shelaid around the house and did nothing, that idea shouldbe quashed from the very start. If that means you don=tget hired, you are a fortunate lawyer. Clients need helpin determining what to seek in relief and the vastmajority wants to be fair. Obviously it is this conceptof Afair@ that sends many people to the Courthouse.The client relies on your expertise to consider all of theaspects of a property settlement including, tax impact,cash flow to support the assets, valuation of the assets,and the appropriateness of a disproportionate division.At the outset of the representation, the clientshould be given the task of beginning work on aninventory. In very large and complex estates the clientwill likely work with the retained accountant on thisproject. If the client is impaired, you or your staff willhave to assist him. If your side of the case iscompletely out of the information loop, the opposingparty must prepare an initial inventory that you will thenneed to independently verify—usually through moreformal discovery. Once that is done, the inventoryshould be summarized in a spreadsheet and a meetingarranged with the client to review the spreadsheet. Theclient can then begin an exercise putting various assetsand liabilities on one side of the sheet or the other andwill generally arrive quickly at an idea of what ispossible and what is not. A sample of such a spreadsheetis attached. This same spreadsheet can be used atmediation as a worksheet to consider offers and will beused as a summary at trial to show the Court your8proposed division. Client involvement in this processearly on will force him to be realistic in his expectationsand should make negotiation much simpler.If the case is not resolved in mediation, that sameset of spreadsheets will become your trial exhibits.There is no wasted effort in the process. The key is thatthe client is a part of the process in determining what isin the estate and can understand from the start what areasonable and likely division of the estate will be.Having done this early, the client will likely not bedissatisfied with the outcome at settlement or trial.B. Suits Affecting the Parent Child RelationshipLike property, clients have many misconceptionsabout custody, support and visitation. After hearingwhat the client desires, prudent counsel will outline thestatus of the law as it relates to joint managingconservatorship, visitation and support. A discussion ofthe presumptions in your jurisdiction and theproclivities of the Court is always important at the initialconsultation. As an example, without telling the clientthat supervised visitation probably will not happen, itwould be more prudent to describe the Court=s dutiesand the burden of proof necessary to overcome thepresumptions. The client then can evaluate thecircumstances based on his own facts and will likelyarrive with you at the probable outcome.A generous explanation about hearsay and thedifficulty of proving the rumors the client has heard isalso helpful. To brief the client in this candid fashion isto avoid a good deal of probably fruitless and certainlyincendiary litigation. If the matter is to be litigated, theclient will know the difficulty in achieving the objectivefrom the start. If your Court is going to follow thesupport guidelines religiously, give your client a copy ofthe guidelines with an explanation of the expense anddifficulty of convincing the Court to rule outside thoseguidelines. It is important to dispel myths and straightenout misinformation from the initial interview. Whilemany prospective clients may not be happy to hear thenews you have for them, there is no advantage tocreating false expectations about outcome. If the case isan uphill battle and the client understands, but persistsin undertaking it, he will not be in a position to complainabout the fee or the outcome. And if you prevail, youwill in fact be the hero.VI. CONCLUSIONMost of us want to please people, and we certainlywant to please our clients. We want them to sing ourpraises and to refer more good business. Unfortunately,family law is one area of the practice where that is mostdifficult. We represent people experiencing one of themost tragic events in their lives. Rarely is anyone“happy” with the outcome. But it is possible for clientsto leave your office and know that you did everythingthat could be reasonably expected, that you charged a

Managing Clients Expectations at Trialfair fee, and that the result met or exceeded theirexpectation. That can only be accomplished if theexpectation was reasonable to start with, and that is wellwithin your control. If you cannot control thatexpectation, you are better served sending theprospective client along his way and to let him bedisappointed with someone else. When that clientcomplains about his result, his friends will tell him heshould have listened to you.9

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